Court hears Data Commissioner to decide on developers data complaint within two weeks

Tuesday, February 13, 2018 - 03:22 PM

By Ann O'Loughlin

The Data Protection Commissioner will decide within two weeks on a complaint by developer brothers Michael and John O’Flynn alleging the National Assets Management Agency failed to provide them with all of the personal data being held by the agency.

Under a settlement of proceedings by the brothers alleging Commissioner Helen Dixon had failed to properly deal with and finalise their November 2014 complaint, the Commissioner will decide the complaint by February 27th, the High Court was told today.

The Commissioner will also pay the brothers’ costs of their judicial review, Mr Justice Seamus Noonan heard.

He agreed to adjourn the matter to February 28th so the settlement can be implemented.

In their action, the brothers had claimed failure to finalise their complaint in a timely fashion breached their rights under the European Convention on Human Rights and Charter of Fundamental Rights of the EU.

They said, after the O’Flynn group loans were transferred in early 2010 to a Nama company, National Assets Loan Management Ltd (NALM), the group engaged with Nama about restructuring their loans with the intention of continuing in business.

To that end, they gave NAMA documents comprising at least 2,000 pages, including “highly confidential and personal” information about their business and personal affairs, they claimed.

NAMA later sold their loans in May 2013 to Carbon Finance Ltd for a reported €1.1 billon.

In September 2014, they asked NAMA’s Data Protection Officer to give them any personal data kept by it concerning them.

Under the Data Protection Act, any such data should have been supplied to them within a maximum 40 days, they said.

They claimed NAMA provided them with certain limited personal data but its response failed to meet their entitlements under the Act.

They made a complaint to that effect to the Commissioner in November 2014.

They disputed NAMA's claims it was entitled to exclude data on grounds including legal privilege and so as not to prejudice the agency’s interests or ability to recover monies owed to the State.

Michael O’Flynn wrote to the Commissioner in June 2015 about delay finalising their complaint, saying the information would be relevant to evidence he was being asked to provide for the Oireachtas Joint Committee of Inquiry into the Banking Crisis.

In correspondence, the Commissioner had stated documents were being sought and any delay finalising the complaint was not surprising given the very substantial documents identified by the brothers as potentially containing their personal data.

They claimed the Commissioner had a "narrow interpretation" of the term personal data as excluding all data relating to them in their capacity as company directors and that she appeared to agree with NAMA’s view data could be excluded on the basis it related “primarily” to their group.

In January 2016, the Commissioner said an investigation would proceed without delay and various updates were provided over the coming months.

On March 6th 2017, having received no findings or final decision, their solicitors told the Commissioner proceedings would be taken.

The brothers and their company O’Flynn Construction have alleged NAMA and NALM leaked "confidential" information concerning them and that alleged leak undermined the marketing strategy NAMA had agreed with them.

They claim the information was financial, personal and corporate and the sums involved were very large, relating to assets worth "hundreds of millions".

Their claims were denied, including that the information was "confidential".